Saturday, September 29, 2012

Judges must not lose sleep over such matters

(First appeared in The Pioneer dated September 19, 2012)

RAJESH SINGH

It is not often that the Chief Justice of India takes swipes at sitting
judges of the Supreme Court over verdicts they have passed. So, when
Chief Justice of India SH Kapadia remarked recently at a function that
“judges must apply the principle of enforceability before propounding
legal principles and passing orders”, the statement generated a great
amount of buzz. He was referring to a ruling by Justice BS Chauhan that
fundamental rights also included the ‘right to sleep’. Justice Chauhan
and Justice Swatanter Kumar formed a two-judge bench which in its
verdict on February 23 had slammed Delhi Police for its brutal midnight
action against followers of Baba Ramdev who had gathered at Ramlila
Maidan in Delhi. Justice Chauhan had said that a citizen had the right
to sound sleep because sleep is fundamental to life.
While not criticising the judge’s interpretation that the right of a
citizen to sleep is part of his fundamental rights, Chief Justice
Kapadia nevertheless said, “Right to privacy had been made a fundamental
right. Now we hear that right to sleep is also a fundamental right… If
we lay down a policy and the Government says it cannot implement it, can
we enforce it by resorting to contempt jurisdiction?” In making those
remarks, the Chief Justice has re-opened a debate on the extent to which
the scope of the ‘right to life’ and ‘personal liberty’ as enshrined in
Article 21 of the Constitution can be expanded. The matter of
enforceability flows from that widening canvas, because the larger and
more broadbased the ‘right to life’ gets, the more difficult it can
become for the new interpretations to be implemented effectively.
Interestingly, much the same apprehensions that Chief Justice Kapadia
has expressed now were raised by former Union Minister, commentator and
author Arun Shourie more than a decade ago in his book, Courts and their
Judgments. In the chapter titled, From “life” to “life with dignity” to
the pay if Imams, Mr Shourie writes, “…If orders are of such sweep that
they cannot be implemented, or if no one seriously follows them up to
ensure that they are implemented, the orders will boomerang on those who
gave them.” It is almost as if the author is referring to the February
23, 2012, ruling on the ‘right to sleep’. In any case, his observations
indeed were in the context of the growing ambit of the ‘right to life’.
It is true that the Supreme Court has been constantly expanding the
reach of fundamental rights, but as Chief Justice Kapadia has pointed
out, such expansion must always and necessarily connect to the core
constitutional philosophy of Article 21. Any deviation from that
principle is bound to result in verdicts that are not just
non-enforceable but also legally suspect. In the present case, for
instance, what about the right of the homeless to sleep on pavements or
in public places? Justice Chauhan has said that such acts did not have
the cover of the fundamental right to sleep. The question is: If indeed
the ‘right to sleep’ is a fundamental right, why should the homeless —
who deserve the right as much if not more than the better-off — be
deprived of a sound sleep wherever they can afford to do so? Such tricky
issues lay bare the difficulty of enforceability that both Chief
Justice Kapadia and Mr Shourie have referred to.
Eight years ago, the Supreme Court ruled on the legal enforcement of
the ‘right to food’ as a fundamental right under Article 21. In response
to a petition by the People’s Union for Civil Liberties, the apex court
in various interim orders on a host of public welfare schemes related
to food such as the Mid-day Meals Scheme and the Antyodya Anna Yojana
said that the ‘right to food’ and the ‘right to nutritious food’ are the
fundamental rights of every citizen of the country. While there is
nothing disputable about this contention, the fact of the matter is that
the sweeping scope of this verdict, even if interim, has made it
difficult for authorities to enforce this. This is despite the various
panels that the apex court has set up to monitor the implementation of
its elaborate orders.
The race to expand the meaning of Article 21 has its origin to a large
extent in the Kharag Singh versus State of UP case. Mr Shourie quotes in
his book from the ruling of the Supreme Court in that case to
demonstrate how suddenly the meaning of life and personal liberty
acquired larger and even larger proportions. To begin with, Article 21
says, “No person shall be deprived of his life and personal liberty
except according to procedure established by law”. In the Kharag Singh
case, Mr Shourie says, the judges held that personal liberty as in
Article 21 is used as a “compendious term to include within itself all
the varieties of rights which go to make up the personal liberties of
man other than those within the several clauses of Article 19 (1).”
The author then goes on to say that soon after, ‘speedy trial of cases’
came to be added to the scope of Article 21. It did not end there; a
succession of judgements — right to a protected (clean and eco-friendly)
environment, right against solitary confinement, right against delayed
execution, right against public hanging, and also the right to
expeditious police investigation — emphatically enlarged and gave a
brand new interpretation to the matter of fundamental rights as
envisioned under Article 21.
But if we look back dispassionately and study the situation, very few
of these rulings have been effective in practice. For example, speedy
trials are still a chimera and delayed executions (especially of
terrorists) are the norm.
Similarly, while dealing with the Unnikrishnan case of the early 1990s,
the Supreme Court had opined, “Though right to education is not stated
expressly as a Fundamental Right, it is implicit in and flows from the
right to life guaranteed under Article 21…” This is yet another classic
instance of a ruling that not only tested the flexibility of the scope
of Article 21 but also came to be observed in breach more often than
not. What else can explain the arrival, despite this verdict, of a
special Act to serve the purpose — the Right of Children to Free and
Compulsory Education Act, better known as the Right to Education Act —
which came into force earlier this year? The Act in fact accords primary
education a legal status which is on par with the right to life and
personal liberty under Article 21.
Clearly, the Supreme Court has over the years come to conclude that it
is not just the personal liberty and life that have cover under Article
21, but nearly everything else that is needed for these two to be
effectively implemented. In other words, as Mr Shourie remarks in the
book, the state has progressively come to be “under a constitutional
mandate to provide facilities that are needed for citizens to be able to
partake” the new expanded rights. Mr Shourie puts it succinctly when he
comments, “From what was intended to protect persons against arbitrary
arrest and restraint, against physical coercion by organs of the State,
Article 21 has become the device… for requiring the state to provide in
effect every thing that would make a person’s life a life of dignity and
fulfillment… The point is about liability, about enforceability.”
Precisely so.
Thus, we are back to square one. The ‘right to sleep’ is destined to
turn out to be as uneforceable a ruling as the many others made by the
Supreme Court in the preceding years to enlarge the scope of fundamental
rights.

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About Me

Born in Allahabad district of Uttar Pradesh.
Brought up in Coimbatore, Cochin and Goa.
Lived in Goa for 36 years: from 1968-2004.
Worked in various positions at the Goa-based English dailies: The Navhind Times and OHerald.
Was Editor of a Goa-based TV news channel Goa 365.
Served as Media Advisor to the Goa Chief in 2002-03.
Served as Director of Information and Publicity, Government of Goa (2002-03).
Now, based in Delhi and working for The Pioneer as Senior Editor